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Will Contests and Attorney’s Fees in Texas: Who Pays When?

In Texas, the outcome of a will contest case does not always determine who will receive an award of attorney’s fees. In fact, even the winning party may not be fully reimbursed for their legal expenses.

This is because the law governing attorney’s fees in will contest cases is nuanced and can vary depending on the specific circumstances. For example, the executor of the will is more likely to recover attorney’s fees than a beneficiary who is challenging the will. However, even the executor may not be awarded fees if the estate does not have enough assets to pay them.

The recent Estate of Rodgers, No. 13-22-00202-CV (Tex. App.–Corpus Christi 2023), case involving a will contest provides an opportunity to consider the attorney’s fee rules in probate cases. This case highlights the importance of understanding these rules if you are involved in a will contest or other probate dispute.

Facts & Procedural History

In 2017, the father executed a Will. Two of the children filed the Will for probate. Another daughter attempted to probate a separate Will that she claimed was signed by the father in 2016.

The proponents of the 2017 Will filed a counterclaim against the daughter for filing false documents and for attorney’s fees.

A jury trial was held in 2023. The jury found that the 2017 Will was valid and admitted it to probate. The jury also found that the father’s children were entitled to reasonable attorney’s fees in the amount of $108,946.60 for the probate litigation involving the 2017 Will.

As for the fraudulent document counterclaim, the jury found the following documents to be fraudulent:

  • A document filed on August 7, 2019, purporting to be a deed of the decedent’s real property that he allegedly gave to the daughter.
  • A document filed on August 19, 2019 purporting to make the daughter the trustee of a trust over real property owned by the decedent.
  • An Employer Identification Number (EIN) filed on October 14, 2020.
  • An Affidavit of Heirship filed on August 9, 2019.
  • An Affidavit of Domicile in the Deed Records filed on August 9, 2019.
  • An Affidavit of Death filed on August 9, 2019.
  • A Trustee Appointment filed on August 6, 2019.

The jury did not award any attorney’s fees for these fraudulent liens and claims on real property. The probate court signed a declaratory judgment confirming that all these documents were null and void.

The daughter filed an appeal. She did not dispute the admission of the 2017 Will to probate. Instead, she appealed the trial court’s award of attorneys fees from the estate. She sought to not have the attorney’s fees charged to the estate or to have the amount reduced.

About Attorneys Fees in Will Contests

Probate litigation can be expensive. This is why attorneys fees are often disputed even when the underlying will contest or other dispute is resolved.

Texas law provides that any person interested in an estate may file a written opposition to any issue in a proceeding at any time before the court decides the issue. This includes the personal representative of the estate, any heirs, and any other interested person.

A personal representative is entitled to reasonable attorney’s fees incurred in connection with the proceedings and management of the estate. This includes fees incurred in probating the will, administering the estate, and defending against any challenges to the will.

A person designated as executor in a will is also entitled to reasonable attorney’s fees if they:

  • Prosecute a proceeding in good faith and with just cause to have the will admitted to probate.
  • Defend the will against any challenges.
  • Prosecute any other proceeding in good faith and with just cause.

Named beneficiaries are entitled to the same fees if they take any of these actions.

Standing to Contest Attorneys Fees

In this case, the daughter did not dispute the jury’s findings regarding the 2017 Will or its revocation of the 2016 Will. Because she was not named in the 2017 Will and did not appeal the Will, only the attorney’s fees, the appeals court concluded that she was not an interested party to the attorney’s fees. In other words, the court held that she was no longer a party to the case and did not have the legal standing to challenge how the attorney’s fees were to be paid.

To have standing to contest attorney’s fees, a party must have a legally protectable interest in the outcome of the dispute. In this case, the daughter did not have such an interest because she was not a party to the will contest and would not be affected by the outcome of the dispute.

You may be wondering why the daughter pursued the appeal. The case does not say, but it may have been that she may have filed the appeal out of spite as to the beneficiaries of the 2017 Will or even the attorney who handed the case for the other parties. She may also have filed the appeal to try to protect the heirs to the 2017 Will–perhaps in a change of heart as to the beneficiaries of the 2017 Will.

The reason may be more tangible. It may be that the daughter received non-probate assets from her father. This may include assets that pass according to beneficiary designation forms. Bank and financial accounts are examples. Texas law allows an insolvent estate to go back and recoup these non-probate assets to pay for the attorney’s fees. Again, the court’s opinion does not indicate whether this is the case. Regardless of the reason, the court did not grant the relief she sought.

Attorney’s Fee Rules in Probate Cases

While this case involved standing, or lack of standing, it also provides an opportunity to consider attorneys fees in will-contest cases.

In Texas Will contest cases, there are specific provisions regarding the recovery of attorney’s fees, even in cases where a litigant is unsuccessful in their efforts. Section 352.052 of the Estates Code sets up two categories of litigants that can recover attorney’s fees.

  1. Executor Designated in the Will: If a person is designated as the executor in a Will, or in an alleged Will, and they initiate or defend a proceeding to have the Will admitted to probate, they can be awarded attorney’s fees and expenses. This applies whether they win or lose the case. The statute explicitly states that the court shall make the award if there’s a factual determination that the executor (or designated executor) brought or defended the action “in good faith and with just cause.”
  2. Beneficiary Under the Will: A person who is a beneficiary under a Will, or an alleged Will, can also seek to probate the Will or defend a Will that has already been admitted to probate. In this scenario, the statute allows for the potential recovery of attorney’s fees and expenses, but it is discretionary on the part of the court. Even if the beneficiary-litigant is found to have acted in “good faith and with just cause,” the court may decide whether to award the fees.

It’s worth noting that both executor-litigants and beneficiary-litigants must demonstrate that they brought or defended the action in “good faith and with just cause.” To pursue attorney’s fees, the litigant needs to include pleadings that support their claim of “good faith and just cause” and submit this issue to a jury if there is a trial by jury. If the trial is conducted without a jury, these factors should be included in the proposed findings of fact and conclusions of law.

Furthermore, any attorney’s fees that are awarded under Section 352.052 are paid by the estate and not by the litigants who were involved in the case. A court cannot assess attorney’s fees against the losing party under this statute.

The Takeaway

Texas law allows an interested party to recover attorney’s fees from the estate in a will contest. This can be seen as both a way to encourage probate litigation and a necessary rule to ensure that all parties have the resources to present their cases fully. However, the reality is that probate litigation can be expensive, and many estates do not have enough funds to pay the attorney’s fees. This can lead to disputes over who should pay the fees, and can even delay or derail the probate process.

In this case, the attorney’s fees were a significant portion of the final award. This is something that anyone considering a will contest should be aware of. They should also consider whether mediation is a better option, as it can often be a more cost-effective way to resolve probate disputes.

Our Houston Probate Attorneys provide a full range of probate services to our clients, including helping with will contests. Affordable rates, fixed fees, and payment plans are available. We provide step-by-step instructions, guidance, checklists, and more for completing the probate process. We have years of combined experience we can use to support and guide you with probate and estate matters. Call us today for a FREE attorney consultation.


The content of this website is for informational purposes only and should not be construed as legal advice. The information presented may not apply to your situation and should not be acted upon without consulting a qualified probate attorney. We encourage you to seek the advice of a competent attorney with any legal questions you may have.

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